IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130418

Docket: M122061

Registry:
New Westminster

Between:

Sung
Hee Kim

Plaintiff

And

David
Morier and Andrei Tigounov

Defendants

Before:
The Honourable Madam Justice Russell

Reasons for Judgment

Introduction

[1]            
Sung Hee Kim was injured in two motor vehicle accidents on September 20,
2007 and November 7, 2008. She seeks compensation for her resulting physical
injuries pursuant to R. 15-1 of the Supreme Court Civil Rules, B.C. Reg.
168/2009.

[2]            
In the first accident, the plaintiff was driving eastbound on 48th
Avenue and collided with a vehicle being driven by David Morier in a roundabout
at 216th Street in Langley, British Columbia. Mr. Morier’s van hit the
plaintiff’s Mazda Protegé 5 on the passenger side. The plaintiff’s vehicle
sustained some damage that was subsequently repaired.

[3]            
The plaintiff did not go to a doctor at first. When she did attend the
doctor after a few days, she was advised to take Advil, ice her sore areas and
rest.

[4]            
Ms. Kim developed pain in the right side of her neck, low back, hip
and foot. She also suffered from headaches. The pain was quite severe at first
but over time she did improve. She was substantially recovered in all areas
except her right low back and hip by the time of the second collision.

[5]            
The second collision occurred when the plaintiff was driving eastbound
in the middle lane on Highway No. 1 in Burnaby. She was struck from behind
by the defendant Andrei Tigounov. This collision exacerbated the pain in her
right low back and hip that was still unresolved. It also re-injured the areas
that had recovered. She is now left with continuing pain in her low back and
hip, which has not responded to treatment.

[6]            
Liability is admitted in both accidents and the parties agree that the
plaintiff’s injuries are indivisible. The defendants also concede that the
plaintiff continues to suffer from pain in her right low back and hip.

[7]            
The defendants argue the plaintiff failed to mitigate her damages. I
find this submission to be quite thin. The only support for this argument is
evidence of the plaintiff giving up the sacroiliac belt recommended to her by Dr. Chu,
her physiatrist. Her reason for giving it up was that it made her feel
uncomfortable.

[8]            
I find the plaintiff took all other measures recommended to her to deal
with her injuries. Ms. Kim undertook physiotherapy, which was
unsuccessful, and extensive exercise. She took anti-inflammatory medication,
tried steroid injection and underwent imaging and other forms of diagnostic
testing.

[9]            
Dr. Chu gave expert evidence that the other measures he discussed
with the plaintiff could not be recommended to her since they were invasive,
carried some risk and their results could not be guaranteed.

[10]        
I find the plaintiff did not fail to mitigate her damages.

[11]        
The only issue for determination then is quantum of damages.

Positions of the
Parties on Damages

[12]        
Non-pecuniary damages are claimed in the amount of $70,000.00. The
defendants say the appropriate range is $35,000.00 to $40,000.00.

[13]        
The plaintiff claims past wage loss of $4,000.00. The defendants say no
past wage loss should be awarded since the plaintiff did not report her income.
In any event, she was working illegally in Canada as she was here on a student
visa, which did not permit her to earn employment income.

[14]        
The plaintiff says she failed some courses in her studies at BCIT as a
result of the pain she suffered. She had to pay extra tuition to retake the
courses and she was delayed a year in entering the work force. She claims for
the extra tuition paid and one year of employment income, measured on the basis
of her current earnings. The defendants deny the plaintiff’s loss of tuition
and delay in entering the workforce were caused by her injuries.

[15]        
The plaintiff alleges she will suffer a loss of opportunity to perform
more remunerative employment in the future as a result of her injuries and says
that a conservative estimate of her loss in this regard is $75,000.00 (at
present value) for the 35 remaining years of her employment life.

[16]        
The defendants say there is no such loss with a real and substantial
connection to the injuries caused by the collisions.

[17]        
Special damages are agreed at $1,000.00.

[18]        
There is no in-trust claim and no claim for cost of future care.

The Plaintiff

[19]        
Ms. Kim came to Canada from Korea in 2004 to study English. She
found life in Canada to be to her liking and particularly enjoyed the access to
nature British Columbia offered.

[20]        
She stayed with a Langley family under a home stay program. While living
with the family she became acquainted with the hosting mother’s brother, Daniel
Loney.

[21]        
After a lengthy courtship, Ms. Kim’s parents permitted her to marry
Mr. Loney in October 2012.

[22]        
Ms. Kim began her studies in Canada with courses in English as a
Second Language. While she studied, she worked in a local sushi restaurant,
even though she was not permitted to work pursuant to the terms of her student
visa. She did not report her income. She claims she worked four days a week
when she was healthy.

[23]        
After the accident, Ms. Kim had to reduce her work hours with the
sushi restaurant, initially to three days a week in early 2008, and then to two
days a week in 2009. Ms. Kim is uncertain as to exactly when the reduction
in hours took place.

[24]        
Ms. Kim’s evidence on her earnings at the sushi restaurant was also
extremely vague. She was able to recall that she made $8.50 per hour and she
estimated working about 4.5 hours a night. She believes her tips averaged about
$60.00 a night. She estimated her earnings at about $1,500.00 per month for a
total of $18,000.00 annually. She had no idea what her total income was during
the years of 2006 – 2009 because she did not keep records. She did not call any
witnesses to address this question.

[25]        
Ms. Kim enrolled in BCIT’s Architectural Engineering Building Technology
program in September 2007, which is a two-year diploma. The plaintiff only
completed the program in June 2010 after failing several courses in 2009. As
she was a full-time student, BCIT did not offer the particular courses she was
required to repeat during its summer session. She was forced to wait one year
to retake them.

[26]        
Ms. Kim attributes her academic failure to the accidents: the pain
resulting from her injuries interfered with her ability to concentrate on her
studies and in exams. Despite this pain, she did not request any accommodation
for her difficulties.

[27]        
 A business record from BCIT establishes that in addition to full time
tuition fees paid for the diploma program, Ms. Kim paid an additional
$10,172.45 to retake the courses she failed.

[28]        
Ms. Kim has moved on to more gainful employment. Following her
graduation from BCIT, she obtained a position with her current employer,
PixiLinks, in September 2010.

[29]        
Despite some continuing pain from her injuries, the plaintiff has not
missed a day of work in her job as a floor plan technician.

[30]        
In that position, she measures both residential and commercial buildings
for the purpose of drawing accurate floor plans. She has to stoop and be on her
hands and knees when performing her job. She is on her feet all day and she
occasionally moves building detritus out of the way to obtain room
measurements.

[31]        
Generally, her work day starts at 9:00 or 10:00 a.m. Her work load
varies significantly between the summer, which is the busy season, and winter.
During the summer, Ms. Kim will finish in the field at 7:00 p.m., return
home, have dinner and prepare her reports late into the evening. On a normal
day she will have three jobs to complete. On a busy day, she could have six to
seven jobs.

[32]        
In the slow period, she is guaranteed a salary of $1,000.00 bi-weekly.
In busy periods, she receives a pay cheque of $5,000.00 bi-weekly.

[33]        
Her annual income for the years indicated is as follows:

·      
2010: $2,705.00 (September to December)

·      
2011: $43,750.00

·      
2012: $51,867.00

[34]        
Her ability to earn income has been impaired, she believes, because she
finds it painful to wear the steel-toed boots she is required to wear on
building sites under construction while performing her job. She found wearing
work boots very uncomfortable when she visited a construction site during her
BCIT training. Yet, she prefers commercial projects because she can earn more
as compared to residential work.

[35]        
Ms. Kim claims her employer is trying to build up the commercial
side of the business as it is more lucrative. It is her view that once her
employer has expanded the business’ commercial work, another person will be
hired to do it as she is unable to fulfill the requirements of attending a
construction site. Over time, she believes this will cause her a loss of income.

[36]        
I was not provided with any evidence of Ms. Kim being forced to
leave a commercial job or a construction site because of her inability to wear
the proper attire. Nor was I provided with evidence on her employer’s plan to
expand its commercial clientele.

[37]        
I note Ms. Kim is the only employee currently doing commercial
floor plan measurement.

[38]        
With respect to Ms. Kim’s leisure activities, she enjoyed a fairly
active lifestyle before the accidents.

[39]        
Ms. Kim and Mr. Loney used to do outdoor activities together.
She would take long hikes with varying elevations. Now, she must manage her
activity to account for fatigue and pain. She has been able to manage the
Houston Trail hike, which is four kilometres in length with some change in
elevation, without much difficulty. She attempted the Grouse Grind in 2011 and
gave up about halfway up the trail.

[40]        
Before her accidents, Ms. Kim was in the process of learning to
snowboard with Mr. Loney. She was able to keep up with him, although she
did not perform at his level. She is no longer able to snowboard because it
causes her pain in her hip.

[41]        
Ms. Kim was also interested in waterskiing but now believes this
activity will be too difficult.

[42]        
Ms. Kim used to bike, an hour at a time. She claims she no longer
cycles, but it was unclear to me as to whether her injuries prevented her from
doing so or whether her loss of confidence in her physical capacity to cycle
was the cause. It was further revealed in her testimony that she had a bike
fall “chasing Daniel” (Mr. Loney). I was not given any indication as to
whether that incident was before or after her accidents.

[43]        
There was some confusion about her ability to play tennis and golf after
the accidents. She indicated she could no longer play tennis but told Dr. Chu
she did play tennis on a visit to Korea in 2009. The disparity in her evidence
was not put to her in cross-examination so I am uncertain about her current
ability to take part in this activity she used to enjoy before her accidents.

[44]        
When she was advised by Dr. Chu to exercise, she undertook a
cross-fit program tailored to her capacity. Her endurance improved but she
still felt pain in her low back and hip.

[45]        
Ms. Kim works long hours at times, making her tired. Evidently,
this means she no longer has either the time or the inclination to go to the
gym.

[46]        
Since Ms. Kim stopped going to the gym she has gained weight and
feels less attractive. She has refused to look at her wedding pictures because
she does not like how she looks in them.

[47]        
Mr. Loney confirmed that many of their previous leisure activities
have been scaled back or avoided completely.

[48]        
For example, planning a holiday that involves a great deal of walking
requires that they plan for rest times so that Ms. Kim is not
over-extended. Even their honeymoon in October 2012 was structured around Ms. Kim’s
limitations. Although they enjoyed themselves, their trip was affected by Ms. Kim’s
problems.

[49]        
Mr. Loney gave evidence that their marital relations have been
detrimentally affected by Ms. Kim’s hip problem. Because of the
restrictions on her activities, Ms. Kim feels that she is not able to be
the wife to Mr. Loney that she would like to be. All the same, Mr. Loney
appears to be a caring husband who accommodates his wife’s anxiety and problems
relating to her pain.

[50]        
Ms. Kim’s dream of having a house with a yard, a dog and a cat are
in the process of coming true but she finds gardening problematic. She gave a
recent example of trying to assist with cleaning up a big branch that had blown
down in the yard. She was only able to help with the clean-up for a short time
before the pain in her hip forced her to quit.

[51]        
The family dog is a source of enjoyment for Ms. Kim but she can
only complete one loop on the track at the dog park without needing to return
home because of pain and fatigue.

[52]        
Ms. Kim and her husband share the cleaning tasks in their home. Mr. Loney
takes on the heavier cleaning tasks, which she cannot perform. Ms. Kim
says her inability to do much in the house “bugs” her because if she sees
something that needs to be done, she has to wait for Mr. Loney to decide
to complete the task. He shrugs off the burden, claiming he is used to
contributing to household chores in a large family.

[53]        
Ms. Kim hopes to have a big family with Mr. Loney but she is
now uncertain about the effect of labour and delivery on her hip and low back
as well as her ability to carry children. She notes that she is no longer as
capable of playing with Mr. Loney’s young brothers and sisters.

[54]        
The severity of the pain Ms. Kim suffers from varies day to day. On
days when it is in the range of three to five out of ten, she does not
complain. When her pain is greater, in the range of an eight out of ten, she
takes over-the-counter pain medication and goes on with her activities. If work
is busy, she pushes through the pain despite feeling that she is almost unable
to bear it. But, to her credit, she has continued to cope.

Expert Evidence

[55]        
I note at the outset of this summary of the expert evidence that Ms. Kim
did not call Dr. Carthy as a witness. He was the doctor who saw her after
the first accident. She did not remember having seen him.

[56]        
I note that for the seven months preceding the second accident, the
plaintiff did not go to the doctor. This is not surprising since the actions
the doctor told her to take were the same from appointment to appointment: ice,
stretch and use Advil for pain and inflammation. These measures worked on most
of the injuries but did not help her lower back and hip pain.

Dr. Somani

[57]        
Dr. Somani is the General Practitioner whom Ms. Kim consulted
after her second accident. He made similar recommendations to those made by Dr. Carthy.
He also referred her to Dr. Chu, a physiatrist.

[58]        
While it is obvious that Dr. Somani was repeating the pain
complaints described to him by Ms. Kim, I have no reason to believe that
he was not accurate in his records.

Dr. Chu

[59]        
Dr. Chu was qualified as an expert physiatrist, qualified to
diagnose and treat musculo-skeletal and neurological problems as well as
chronic pain. He was called upon as an expert witness by the plaintiff.

[60]        
Dr. Chu impressed me as a reliable, careful expert who stated his
conclusions in a measured way.

[61]        
Dr. Chu was clear that he did not solely rely on Ms. Kim’s
self-reports of pain in coming to his conclusions. His findings were also based
on his physical examination of Ms. Kim and her response to palpation. He
observed her guarding certain areas, thus indicating the presence of pain. He
opined there were no non-organic signs present.

[62]        
Dr. Chu concluded that Ms. Kim had no previous history of back
or hip pain. It was probable that her now chronic pain was caused by the first
accident and exacerbated by the second.

[63]        
He found that Ms. Kim’s injuries from the accidents left her with
chronic pain in her right low back and her right lateral hip area. The low back
pain originated in the right sacroiliac (“SI”) joint and in the muscle groups
in the right buttock.

[64]        
The hip pain Dr. Chu found was located in the right lateral hip
over the greater trochanter. The pain in that area of her right hip is a form
of trochanteric bursitis, which she feels while sitting or lying down on her
right side.

[65]        
Dr. Chu states the evidence of regional muscle pain over Ms. Kim’s
right buttock is a type of “myofascial pain syndrome” that develops when
muscles get sore and the central nervous system pathways change. This makes the
nerves more sensitive and causes the muscles to tighten. These “tightened”
muscles hurt when stretched out.

[66]        
He found that the pain in Ms. Kim’s right lateral hip was not as
bad as the right SI joint pain. He was able to locate the pain by using a
short-acting anaesthetic block in the right SI joint.

[67]        
Her prognosis is generally poor for resolution of the pain she suffers
from. He assessed the pain as moderate and her level of disability as fairly
mild. But it will continue indefinitely.

[68]        
Dr. Chu states that Ms. Kim is generally able to carry on with
her regular hours and duties at her job as well as almost all of her regular
chores with the exception of mopping. She is also able to pursue leisure
activities, “including going to the gym and doing an exercise program”.

[69]        
He does not recommend any invasive approach to recovery and says she is
not at an increased risk of accelerated degenerative changes resulting from the
accidents.

Damages

Non-Pecuniary Damages

[70]        
Non-pecuniary damages are awarded to compensate the plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities. Such damages should
be fair to all parties. To assess fairness, I must look to damages awarded in
comparable cases.

[71]        
Both parties have provided me with authorities which, while helpful, can
only provide the Court with general guidelines since each case turns on its own
facts.

[72]        
The plaintiff relies upon the following authorities as the basis for her
claimed award of $70,000.00:

(i)       Love v. Lowden,
2007 BCSC 1007 ($60,000.00);

(ii)      K.T. v. A.S., 2009
BCSC 1653 ($70,000.00);

(iii)      Jawanda v. Samra,
2013 BCSC 138 ($75,000.00).

[73]        
The defendant relies on the following authorities:

(i)       Weinmuller v. Tait,
2006 BCSC 416 ($35,000.00);

(ii)      Laroye v. Chung,
2007 BCSC 1478 ($40,000.00);

(iii)      Bartel v. Milliken,
2012 BCSC 563 ($35,000.00).

[74]        
In Love, the plaintiff maintained a high level of physical
activity before the accident. He suffered from ongoing pain and experienced
“pronounced discomfort” two or three times a month, which he described as a hot
poker being shoved into his lower back (para. 7). His injuries were
considered permanent. K.T. involved a younger plaintiff who suffered
from intense pain at times. Jawandra involved a plaintiff who suffered from
thoracic outlet syndrome in addition to her soft tissue injuries. Six years
after the accident she still suffered from mild to moderate pain and
discomfort.

[75]        
Weinmuller, Laroye and Bartel involved much older
plaintiffs. I further note that in Laroye and Bartel, both
plaintiffs had substantially recovered and were able to resume most of their
former activities.

[76]        
It is common ground that there are a number of factors the court must
take into account when assessing a claim for non-pecuniary damages. Madam
Justice Kirkpatrick, writing for the majority in Stapley v. Hejslet,
2006 BCCA 34, outlined the factors to consider as follows:

[46]      The inexhaustive list of common factors cited in Boyd
[v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages
includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

I would add the following factors, although they may arguably
be subsumed in the above list:

(g) impairment of family, marital
and social relationships;

(h) impairment of physical and
mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as a factor that should not,
generally speaking, penalize the plaintiff: Giang v. Clayton, [2005]
B.C.J. No. 163 (QL), 2005 BCCA 54).

[77]        
The plaintiff is a young woman of 30, newly married, who enjoyed an
active lifestyle prior to the accident.

[78]        
Certainly, Ms. Kim was very uncomfortable immediately after each
accident. Although she was not seriously injured either time, she initially
suffered soft tissue injuries, headaches, fatigue and accompanying nerve pain,
which caused tingling and the sensation of a hot ball of pain in her calf. The
most acute pain resolved relatively quickly but that does not mean her
suffering can be dismissed.

[79]        
The defendants agree that Ms. Kim has been left with ongoing hip
and low back pain as a result of the accidents, for which they admit liability.

[80]        
It is clear to me that this recurrent pain affects her enjoyment of life
and has somewhat blighted her pleasure in an active lifestyle.

[81]        
I accept Dr. Chu’s findings with respect to the poor prognosis for
resolution of her pain. It is likely that she will continue to experience it
for the foreseeable future in varying degrees.

[82]        
I also accept Dr. Chu’s assessment of Ms. Kim’s level of
disability as mild.

[83]        
Ms. Kim is inclined to allow her anxiety about her pain to interfere
with her efforts to continue with her life. While I understand that she is
apprehensive about undertaking activities that may be uncomfortable, it is my
view that she will regain some confidence as the years go by.

[84]        
I award Ms. Kim the amount of $55,000.00 in non-pecuniary damages.

Past Loss of Income

[85]        
Ms. Kim seeks $4,000.00 for past loss of earnings, pointing to her
injuries as the reason why she was forced to cut her hours of work at the sushi
restaurant following the motor vehicle accidents.

[86]        
I found her evidence to be vague on her recollection of her earnings and
her work hours. She had no records, no dates and simply asked the Court to
accept her guess as to what she earned and when she reduced her hours. She did
not attempt to call a witness who could have assisted her with this evidence
and blamed her lack of evidence on the fact that she was working illegally
while in Canada on a student visa.

[87]        
It is my finding that she has failed to meet her burden of proof. I will
not award any amount for past loss of earnings.

Tuition

[88]        
The plaintiff claims for additional tuition she was forced to pay as a
result of failing several courses in her program at BCIT.

[89]        
She says her failure was caused by her inability to perform in her
studies and exams because of her pain.

[90]        
She agrees she did not request any accommodation for her injury.

[91]        
The particular difficulty with this claim is that it is clear from Ms. Kim’s
marks that her English language limitations became somewhat more significant as
the level of difficulty of the courses increased.

[92]        
Once again, her evidence on this issue was vague so I am left with only
an impression of her complaints about the discomfort she suffered, without any
real examples.

[93]        
It is also unclear as to how she occupied her time during the year she
waited to retake the courses she failed. It would seem sensible that she
mitigated her loss but I have no evidence on that point.

[94]        
All the same, I am satisfied that Ms. Kim was dealing with ongoing
pain at the time.

[95]        
I find that 50% of her academic failure relates to her problems with
language and 50% can be attributed to the pain caused by her injuries. I award
50% of the tuition claimed, or $5,086.00.

Delay in Entering the Workforce

[96]        
I will now deal with the amount claimed for Ms. Kim’s one-year
delay in entering the work force. She seeks $51,000.00 ─ the maximum
amount she has earned annually at PixiLinks to date. This amount is the cap for
what she can recover under this head of damages.

[97]        
The claim for late entry into the work force arises from the same issues
that gave rise to the claim for tuition. Accordingly, I find that Ms. Kim’s
late entry into the work force is only 50% related to her injuries. However, it
seems fair that the plaintiff would be required to go to some effort of
mitigation and I have deducted an additional $5,000.00 since I do not have any
evidence on that point.

[98]        
I award Ms. Kim $20,500.00 to compensate her for her delay in
entering the work force arising from the extra year that she was required to
invest in passing her courses.

Loss of Future Earning Capacity

[99]        
A claim for loss of future earning capacity raises two questions: has
the plaintiff suffered injuries that have impaired her earning capacity and, if
so, what compensation should be awarded for the resulting financial harm that
will accrue over time?

[100]     The
assessment of loss must be based on the evidence. The appropriate means of
assessment will vary from case to case: Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353 (C.A.) at para. 8; Pallos v. Insurance Corp. of
British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.) at para. 24; Pett
v. Pett, 2009 BCCA 232 at paras. 18 – 19.

[101]     The
assessment of damages is a matter of judgment, not calculation: Rosvold v.
Dunlop, 2001 BCCA 1 at para. 18.

[102]     The
essential task of the Court is to compare the likely future of the plaintiff’s
working life if the accidents had not occurred with the plaintiff’s likely
future working life after the accidents: Gregory v. Insurance Corporation of
British Columbia, 2011 BCCA 144 at para. 32.

[103]     There are
two possible approaches to assessment of loss of future earning capacity:  the
“earnings approach” and the “capital asset approach”. Both are correct and will
be more or less appropriate depending on whether the loss in question can be
quantified in a measurable way: Perren v. Lalari, 2010 BCCA 140 at para. 32.

[104]     The
capital asset approach involves considering whether the plaintiff:

(i)       has
been rendered less capable overall of earning income from all types of
employment;

(ii)      is less marketable or
attractive as a potential employee;

(iii)      has
lost the ability to take advantage of all job opportunities that might
otherwise have been open; and

(iv)     is less
valuable to herself as a person capable of earning income in a competitive
labour market.

[105]     See Brown
at para. 8; Gilbert v. Bottle, 2011 BCSC 1389 at para. 233.

[106]     The
capital asset approach seems more appropriate for this case since it would be
difficult to postulate a minimum annual income loss for the plaintiff’s
remaining years of work and I do not have expert evidence to assist me in that
regard.

[107]     The
plaintiff has suggested $75,000.00 is a reasonable estimate of what she would
lose over her work life by virtue of the pain caused by her injuries. She
projects that the steel toed boots will continue to interfere with her ability
to work on commercial construction sites, where she can earn more than she can
earn on residential sites. Ms. Kim further bases this claim on her alleged
loss of 27 commercial jobs a year.

[108]     I am not
aware of any particular jobs that she has lost as a result of being unable to
attire herself correctly to attend a construction site. It has not been
suggested to me that someone else has been hired to do the work she is unable
to perform. As well, I have no reliable evidence on the estimated amount of commercial
work that would likely become available to Ms. Kim over the years ahead.

[109]     I am
reminded of the fact that Ms. Kim has not missed any work and she can work
12 to 15 hours per day.

[110]     Her
ambition appears to mean that she will continue to achieve at her job despite
her pain. This should not result in a lower award than would be given to an
injured plaintiff who complains constantly. However, to some degree, I must
take her continuing ability to do her job as a limit on her claim for future
wage loss.

[111]     Given the
nature of her continuing pain, I find that she is entitled to some amount for
her loss of a capital asset, namely her own perception that she is less
valuable as an employee.

[112]     However,
in view of the vague and uncertain nature of the evidence available to me under
this head of damages, I limit her award to a nominal amount.

[113]     Therefore,
I award Ms. Kim the sum of $10,000.00 for her loss of capacity, based on
present value.

[114]     I find that
as she ages, she may be less capable of maintaining her disciplined approach to
work.

[115]     I have
also built in a negative contingency, recognizing that her desire for a big
family with Mr. Loney may remove her from the work force at a much earlier
age than 65. Support for this form of contingency can be found in Soligo v.
Turner, 2002 BCCA 73 at para. 34, where the court upheld a 20%
reduction for the prospect of motherhood.

Conclusion

[116]     In
summary, I award the following quantum of damages to the plaintiff:

[117]     Costs are
in the cause. If counsel cannot agree on the costs payable to Ms. Kim they
may apply.

[118]    
I assume that counsel will be able to deal with any tax issues that
arise.

“L.D.
Russell J.”

_______________________________________

The Honourable Madam Justice Loryl D.
Russell